ACKER & ACKER

[2019] FCCA 3511

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACKER & ACKER [2019] FCCA 3511

Catchwords:
FAMILY LAW – Interim parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:
Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCA 240
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36

Applicant: MR ACKER

Respondent: MS ACKER

File Number: PAC 2031 of 2019

Judgment of: Judge Newbrun

Hearing date: 3 December 2019

Date of Last Submission: 3 December 2019

Delivered at: Parramatta

Delivered on: 10 December 2019

REPRESENTATION

Solicitors for the Applicant: Mr Alis

Solicitors for the Respondent: Ms Shilson-Josling

Solicitors for the Independent Children's Lawyer: Mr Layson

ORDERS PENDING FURTHER ORDER

1. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by the Court.

2. The Family Report to deal with the following matters:

   (a)Any views expressed by the child/ren and any factors relevant to the weight to be attached to those views, provided that the child/ren shall not be required to express a view in relation to any matter.

   (b)The nature of the child/ren’s relationships with each of the child/ren’s parents and other persons (including any grandparent or other relative of the child/ren);

   (c)The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child/ren of any separation from:

   (i)either of the parents: or

   (ii)any other child, or other person (including any grandparent or other relative of the child/ren), with whom the child/ren has/have been living

   (d)The capacity of each parent, or another person (including any grandparent or other relative of the child/ren), to provide for the child/ren’s needs, including emotional and intellectual needs.

   (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child/ren and of either of the child/ren’s parents, and any other characteristics of the child/ren that the report writer thinks are relevant to opinions expressed in the report.

   (f)The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren’s parents.

3. Within 7 days of the date of these Orders the parties must do all acts and things to enrol in a recognised post separation program such as Keeping Kids in Mind through CatholicCare, Parents not Partners through Interrelate or Parenting After Separation through Relationships Australia to assist them with reducing conflict and developing a more consistent narrative about the parents’ separation to share with the children.

4. For purposes of facilitating Order 3, the parties must then:

   (a)Attend at such times, dates and places as may be advised; and

   (b)Pay such fees as may be charged; and

   (c)Provide certificates of completion for the courses to the other party and the Independent Children’s Lawyer within 48 hours of receipt.

5. On a without admissions basis:

   (a)The mother is restrained from leaving the children unattended in the care or presence of the maternal uncle, Mr A Acker;

   (b)The parties are restrained from physically disciplining the children. 

6. Each of the parties shall be restrained from denigrating the other parent whilst any of the children are in their presence.

IT IS NOTED that publication of this judgment under the pseudonym Acker & Acker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2031 of 2019

MR ACKER

Applicant

And

MS ACKER

Respondent

REASONS FOR JUDGMENT

1. These Reasons relate to an interim hearing held on 1 November and 3 December 2019.  The subject children are [X] born … 2012 and [Y] born … 2013.

2. On 2 July 2019, interim parenting orders by consent were made by the Court and provided, inter alia, that the children spend supervised time with the father through a private contact service provider namely Connecting Families no less than three hours each Sunday afternoon.

3. On 2 July 2019, the Court appointed an interim hearing for 1 November 2019, the issues being the nature and extent of the children’s time with the father.

Proposals

1. The ICL sought a continuation of the above orders of 2 July 2019 relating to the children spending supervised time with the father.  He also sought orders that the parties attend a recognised post separation program (“to assist them with reducing conflict and developing a more consistent narrative about the parents’ separation to share with the children”); that the father attend a recognised men’s behaviour change program; and that the mother be restrained from leaving the children unattended in the care or presence of the maternal uncle; and that the parties be restrained from physically disciplining the children.

2. The mother sought orders in accordance with a Minute of Order attached to her Case Outline of nine pages).  Inter alia, she sought orders that she have sole parental responsibility for the children; that the children live with her; and the father spent time with the children supervised by Connecting Families.

3. The father sought orders in accordance with his Case Outline.  Inter alia, he sought orders that the children live with the mother; that the parents have equal shared parental responsibility for the children; and that the father spend time with the children unsupervised, during school term times in the aggregate five nights per fortnight, and on special occasions and during school holidays.  He also sought a restraining order in relation to the maternal uncle.

Materials

1. The father relied upon his Case Outline and the documents referred to on page 1 of that Case Outline.  He also relied upon further Connecting Families contact reports (see Exhibit B which are all the supervised contact reports between the children and the father).  He also relied upon an Affidavit of his new partner filed 2 December 2019

2. The mother relied upon the documents referred to on page 1 of her Case Outline

3. In evidence were various documentary exhibits including a CIC memo; again the Connecting Families reports; and Exhibit E being numerous subpoenaed records of various third-party institutions tendered by the ICL.

Agreed facts unless otherwise stated

1. The mother is aged 38 years.  The father is aged 32 years.

2. The parties’ cohabitation commenced in about April 2012.  The parties separated in about February 2019.  Thereafter the children spent no time with the father until supervised time commenced pursuant to the Court’s orders of 2 July 2019.

Legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.

5. In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

6. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context the Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

Meaningful relationship primary consideration

1. The children have a meaningful relationship with the mother and would benefit from a continuance of that relationship. The mother has been the children’s primary carer from birth to date, whilst acknowledging the father asserts that he provided significant assistance in the care of the children.

2. The children appear to have a positive relationship with the father, and in this regard the Court refers to the Connecting Families contact visit reports, Exhibit B. The children would benefit from the maintenance and development of that positive relationship provided it is safe for them to do so.

3. Should the children continue to spend supervised time with the father pursuant to the Court’s orders of 2 July 2019, there is a significant prospect that their present positive relationship with the father can be maintained, and that they will not suffer psychological harm by such continued supervised time.  In this context, the Court has taken into account, in particular, what appears to be positive time spent by the children with the father during supervised visits and stated wishes to spend increasing time with the father.

4. As discussed below, there is a significant risk that should the children spend unsupervised time with the father, the mother will experience exacerbation of her current asserted anxiety and stress with resultant adverse effects upon her parenting capacity for the children and thereby her meaningful relationship with them.

Need to protect primary consideration

1. On the material before the Court, there is an unacceptable risk of harm (both physical and/or psychological) posed to the children in spending unsupervised time with the father.

2. The mother makes serious allegations of family violence perpetrated against her by the father during the relationship, including alleged physical abuse, and verbal abuse, and verbally threatening behaviour. The mother also alleges the father threatened the children with knives during the relationship, and alleges that the father excessively physically disciplined the eldest child during the relationship. The Court has significant concerns in relation to the children spending unsupervised time with the father in light of these allegations. The father makes significant denials in his material in relation to such allegations, however the Court’s concerns remain.

3. The Court also refers to the father’s statements to the Family Consultant, including statements that he would tell the mother that she was fat, and that “everyone plays with their wife, pinches, smacks on the hands”, having stated that “these were playful situations”.

4. The Court also has concerns that the father is inappropriately engaging the children in the parental dispute.  In this regard, the Court refers, for example, to the father’s statement to the family consultant that since he recommenced spending time with the children, he has been helping the children realise that what the mother is saying about him is “false stuff”. 

5. A provisional ADVO, protecting the mother from the father was issued on 28 February 2019.  A final ADVO was made on 15 July 2019 protecting the mother from the father, albeit that this AVO was entered into without admissions by the father.

6. The Court takes into account the statements by the family consultant that the mother’s allegations of behaviour perpetrated by the father may be consistent with coercive controlling family violence.

7. The mother alleges that the father messaged her over 20 times on WhatsApp and caused her to feel afraid.

8. The Court has taken into account the subpoenaed material tendered by the ICL, whilst acknowledging that this material is untested.

9. The Court refers to the ICL’s tab 6 in the subpoenaed records from the Healthcare Clinic B relating to a consultation between a doctor and the mother on 27 March 2019, in which the mother tells the doctor, inter alia, that the eldest child has stated, “I will get my dad to kill you” to another child at school. 

10. The ICL refers the Court to certain subpoenaed records from the children’s school, in which there is reference to alleged instances of aggressive behaviour by the children towards other students.  There is force to the submission of the ICL that such behaviour might be consistent with the children being exposed to parental conflict, if not family violence, within the family home during the parties’ relationship.

11. The Court takes into account the eldest child’s statements to the Family Consultant that he feels scared when the father smacks him on the leg. The Court takes into account the youngest child’s statement to the Family Consultant that the father would smack the children when they misbehave.

12. There is a significant risk that should the children spend unsupervised time with the father, the mother will experience exacerbation of her current asserted anxiety and stress with resultant adverse effects upon her parenting capacity for the children and thereby her meaningful relationship with the children.  For example, the Court refers to the ICL’s tab 14 relating to a COPS Report of 7 March 2019 from NSW Police subpoenaed records. An alleged breach of AVO is reported by the mother to the police with the police stating in their report that the mother appeared to be very stressed about the continual contact with the father especially considering he is not meant to approach or contact her at all.  Further, for example, the COPS report of 24 February 2019 records the mother being fearful of physical violence being used against her again by the father.  Further in this context, the Court refers to the tendered material from the mother’s treating psychologist at Psychology Practice C, including the mother asserting to the psychologist of her being terrified and petrified of the father and referring to her anxiety and stress post separation.  She also refers to alleged verbal threatening behaviour by the father.  She refers to alleged shedding of hair, a racing heart and that her fear is “killing me”.  The Court refers to the report of the psychologist, Ms D dated 21 May 2019, in relation to the mother, whilst acknowledging that this report remains untested.

13. The father, for his part, alleges that the mother frequently told him during the relationship that she was unable to cope with caring for the children.  He also alleges that the mother was verbally abusive towards the children and threatened to kill them, which the mother denies.  The Court refers to the father’s allegations against the mother as reported in the CIC memorandum and in his Affidavit material.  The mother makes significant denials in this context.  It is not without relevance in this context that the father seeks interim orders, inter alia, that the children live with the mother.  In this context the Court also takes into account the children’s positive statements in relation to the mother as expressed to the Family Consultant, whilst noting their tender ages. (However the Court should state that it does take into account the significant suggestion from, for example, the Connecting Families visitation reports, that the mother may be denigrating the father to the children; the Court proposes to make a non-denigration order in relation to both parties).

14. The Court has taken into account the positive supervised time spent by the children with the father through Connecting Families, however the Court’s concerns, referred to above, remain.

15. The Court’s concerns would not be minimised and addressed by the children spending time with the father supervised by his new partner, having regard to the new partner’s Affidavit stating, inter alia, that she does not believe the father’s time with the children needs to be supervised, and that she believes the allegations of family violence made by the mother did not appear to be in line with what she has personally observed of the father’s behaviour and character.  There is force to the submission of the mother that the new partner’s Affidavit suggests that she is significantly aligned with the father and may well lack objectivity in adequately supervising the children’s time with the father.

16. The Court’s concerns, discussed above, in relation to the children spending unsupervised time with the father, can be minimised and addressed by the children continuing to spend supervised time with the father, by making the ICL’s proposed restraining order that the parties be restrained from physically disciplining the children, and by making a non-denigration order in relation to the parties.

Additional considerations

1. The mother would appear to have the capacity to provide for the needs of the children including emotional and intellectual needs, with the Court not overlooking the mother’s present anxiety and stress in relation to these proceedings. 

2. The Court should state that it has concerns in relation to the parties allegedly denigrating each other in the presence of the children, and, again, a non-denigration order will be made in the best interests of the children.

3. As to the father, it would appear that he has such capacities, subject to the Court’s discussion above under the need to protect primary consideration.

4. The father makes allegations in relation to the maternal uncle, including that the latter verbally threatened the father in about March 2019.  He also alleges that the maternal uncle used smacking as a means of discipline of the children, and the youngest child told the Family Consultant that smacking by the maternal uncle occurs.  The mother consents to the ICL’s proposed restraint regarding the maternal uncle.

5. The ICL has proposed that the parties participate in a recognised post separation programs such as Keeping Kids in Mind, to assist them with reducing conflict developing a more consistent narrative about the parents separation share with the children.  Such an order will be in the best interests of the children.

1. As to the ICL’s proposed order that the father participate in a recognised men’s behaviour change program, such as Facing Up run by Baptist Care, the Court observes that presently the father significantly denies the mothers allegations relating to alleged family violence perpetrated by him. Considering such denials, the father’s participation in such a program may not be meaningful. The Court will leave it to the father to consider his own position in relation to participating in such a program, and he may wish to seek advice from his solicitors generally in relation thereto.

Parental responsibility

1. It will not be in the best interests of the children to make an express order for parental responsibility at this interim stage. There are no major decisions looming for these children, noting that they recently changed schools.

2. Evaluating the above discussed considerations under section 60CC of the Act, it will be the best interests of the children to make the following orders:

3. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by the Court.

4. The Family Report to deal with the following matters:

   (a)Any views expressed by the child/ren and any factors relevant to the weight to be attached to those views, provided that the child/ren shall not be required to express a view in relation to any matter.

   (b)The nature of the child/ren’s relationships with each of the child/ren’s parents and other persons (including any grandparent or other relative of the child/ren);

   (c)The likely effect of any changes in the child/ren’s circumstances, including the likely effect on the child/ren of any separation from:

   (i)     either of the parents: or

   (ii)    any other child, or other person (including any grandparent or other relative of the child/ren), with whom the child/ren has/have been living

   (d)The capacity of each parent, or another person (including any grandparent or other relative of the child/ren), to provide for the child/ren’s needs, including emotional and intellectual needs.

   (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child/ren and of either of the child/ren’s parents, and any other characteristics of the child/ren that the report writer thinks are relevant to opinions expressed in the report.

   (f)The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren’s parents.

5. Within 7 days of the date of these Orders the parties must do all acts and things to enrol in a recognised post separation program such as Keeping Kids in Mind through CatholicCare, Parents not Partners through Interrelate or Parenting After Separation through Relationships Australia to assist them with reducing conflict and developing a more consistent narrative about the parents’ separation to share with the children.

6. For purposes of facilitating Order 3, the parties must then:

   (a)Attend at such times, dates and places as may be advised; and

   (b)Pay such fees as may be charged; and

   (c)Provide certificates of completion for the courses to the other party and the Independent Children’s Lawyer within 48 hours of receipt.

7. On a without admissions basis:

   (a)The mother is restrained from leaving the children unattended in the care or presence of the maternal uncle, Mr A Acker.

   (b)The parties are restrained from physically disciplining the children.

8. Each of the parties shall be restrained from denigrating the other parent whilst any of the children are in their presence.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date:  10 December 2019